[2023] KEHC 20416 (KLR)
The court found that there was a material disconnect between the record of appeal and the original trial court record, specifically that the original file did not contain the impugned ruling or proceedings after August 2, 2016, while the record of appeal did. This raised serious issues regarding the completeness,...
Source-derived case information.
- Citation
- [2023] KEHC 20416 (KLR)
- Parties
- Appellant: Stephen Lugano; Respondent: Naomi Mihadi Zauko; Respondent: Harris Aginga Asiligwa
- Court
- High Court
- Court Station
- High Court at Vihiga
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 14 of 2021
- Procedural Posture
- Civil Appeal / Interlocutory Ruling on Record Completeness Prior to Judgment
- Outcome
- No final determination; administrative directions issued to resolve record anomaly before judgment.
- Judges
- WM Musyoka
- Legal Topics
- Appeal Record Integrity, Trial Record Authenticity, Procedural Anomalies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Lugano
Appellant
Naomi Mihadi Zauko
Respondent
Harris Aginga Asiligwa
Respondent
Procedural Posture
Civil Appeal / Interlocutory Ruling on Record Completeness Prior to Judgment
Legal Issues
- 1 Whether the record of appeal is complete, authentic, and in tandem with the original trial court record.
- 2 Whether a decision can be rendered where there is a disconnect between the record of appeal and the original trial court file.
Ratio Decidendi
The court found that there was a material disconnect between the record of appeal and the original trial court record, specifically that the original file did not contain the impugned ruling or proceedings after August 2, 2016, while the record of appeal did. This raised serious issues regarding the completeness, integrity, and authenticity of the trial record. In such circumstances, the court determined that it could not proceed to render a decision on the appeal until the anomaly was resolved. The Deputy Registrar was directed to investigate and reconcile the records, after which the file would be returned to the judge for judgment-writing.
Court Disposition
No final determination; administrative directions issued to resolve record anomaly before judgment.
Orders
- The Deputy Registrar is directed to look into the matter so that the original trial records are in tandem with the record of appeal or otherwise resolve the anomaly.
- The file is to be returned to the judge administratively thereafter for judgment-writing.
Full Case Text
Judgment text and source record
22 paragraphs
Lugano v Zauko & another (Civil Appeal 14 of 2021) [2023] KEHC 20416 (KLR) (21 July 2023) (Ruling)
Neutral citation: [2023] KEHC 20416 (KLR)
Republic of Kenya
In the High Court at Vihiga
Civil Appeal 14 of 2021
WM Musyoka, J
July 21, 2023
(formerly Kakamega HCCA No. 116 of 2019)
Between
Stephen Lugano
Appellant
and
Naomi Mihadi Zauko
1st Respondent
Harris Aginga Asiligwa
2nd Respondent
(Appeal from ruling and order of Hon. RM Ndombi, Resident Magistrate, RM, in Vihiga PMCSC No. 45 of 2015, of 24th October 2019)
Ruling
1. I find a disconnect between the record of appeal and the original trial court record from which it is derived. That raises completeness, integrity and authenticity issues around the record of the trial court, and a decision cannot be made on it in the circumstances.
2. The appeal herein is on a determination that Hon Ndombi, RM, allegedly made on October 24, 2091. Whereas the record of appeal has the proceedings conducted before Hon Ndombi, RM, inclusive of the impugned ruling, the original trial court file does not have that record or proceedings. The original trial court file only runs up to 2nd August 2016, when the grant was confirmed by Hon JA Orwa, Principal Magistrate, PM. There is nothing in that record to suggest that other proceedings were taken after August 2, 2016. The last application to be filed in that original record, on July 8, 2016, is the summons for confirmation of grant, dated June 23, 2016, which Hon Orwa, PM, determined on August 2, 2019.
3. I hereby direct the Deputy Registrar to look into the matter, so that the original trial records are in tandem with the record of appeal, or otherwise to resolve the anomaly one way or other. The file to be returned to me, administratively, thereafter, for judgment-writing.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 21ST DAY OF JULY 2023W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.AppearancesMs. Osewe, instructed by Owiti Otieno & Ragot, Advocates for the appellant.Mr. Chanzu, instructed by ZK Yego Law Offices, Advocates for the respondents.